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Home > Journals > Michigan Law Review > MLR > Volume 25 > Issue 1 (1926)

 

Abstract

May one under any circumstances kill in order to prevent the loss or destruction of his property? By this question is meant killing solely to prevent loss or destruction of property; necessary homicide in self-defense is unquestionably justifiable. Much of the confusion on the question whether one may take life if necessary in defense of property is due, it seems, to a persistent tendency to treat the two questions as the same. It hardly needs statement that the body of law pertinent to self-defense is totally distinct fundamentally from that pertaining to one's powers in defense of his chattels. Practically, the facts involving self-defense often arise from a violation of property rights. Consequently we find much dicta in self-defense cases on the question of defense of property, and it must be admitted that this dictum forms the main part of the text authority on the subject. People v. Dann, 53 Mich. 490, 19 N. W. 159, is a case well illustrating this. The court expressly stated that one may use as much force as is necessary to protect property, but the assailant had brandished a weapon and the principles of self-defense quite obviously were involved in the conclusion. Dictum that one may if necessary resort to homicide to prevent loss or destruction to his property was also given in Parrish v. Commonwealth, 81 Va. 1, where it was found that defendant had reasonable grounds for believing his life in danger. Other cases of the general type are Roach v. People, 77 Ill. 25; Oliver v. State, 17 Ala. 587; State v. Thompson, 71 Iowa 503, 32 N. \V.476; State v. Kennedy, 20 Ia. 56), and People v. Payne, 8 Cal. 341. It is submitted that a decision based both upon defense of the person and defense of property is not binding authority for the latter doctrine, inasmuch as the former doctrine is established and sufficient alone while we can only guess as to what result the court might reach upon the property question by itself. It is necessary, therefore, to bear in mind at all times this distinction-where the law of self-defense enters, authority for doctrines of defense of property vanishes.

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